FILED

United States Court of Appeals

Tenth Circuit

February 12, 2013

PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TRACY KEITH,
Plaintiff - Appellee,
v.

No. 12-3101

RICHARD D. KOERNER,
Defendant - Appellant,
and
ANANSTACIO GALLARDO,
Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
(D.C. No. 2:11-CV-02281-KHV-JPO)

John Wesley Smith, Assistant Attorney General (Michael J. Smith, Assistant

Attorney General, and Jeffery A. Chanay, Deputy Attorney General, on the briefs)
Office of Attorney General Derek Schmidt, Topeka, Kansas, for Defendant Appellant.
Paul W. Hughes (Charles A. Rothfeld, Miriam R. Nemetz, and Michael B.
Kimberly of Mayer Brown, L.L.P., Washington, D.C.; John Kurtz of Hubbard &
Kurtz, L.L.P., Kansas City, Missouri, with him on the briefs), for Plaintiff Appellee.

Before KELLY, MURPHY, and TYMKOVICH, Circuit Judges.

KELLY, Circuit Judge.

Plaintiff-Appellee Tracy Keith, a former inmate, filed a civil rights

complaint pursuant to 42 U.S.C. 1983, alleging violations of her rights under
the Eighth Amendment. App. 2. She named as Defendants former warden
Richard Koerner and other Kansas Department of Corrections employees. Id.
Mr. Koerner appeals from the district courts denial of qualified immunity. See
Keith v. Werholtz, No. 11-2281-KHV, 2012 WL 1059858 (D. Kan. Mar. 28,
2012). Exercising jurisdiction under 28 U.S.C. 1291, we affirm.

Background
Ms. Keith was an inmate at the Topeka Correctional Facility (TCF), an
all-female state prison, between November 2006 and May 2010. App. 5. While
there, she participated in a vocational training program. Id. at 23. Her instructor,
Ananstacio Gallardo, engaged in unlawful sexual acts with Ms. Keith in October
of 2007, and she became pregnant as a result. Id. at 7, 23. The pregnancy was
terminated. Id. at 7. The Topeka Police Department then conducted an
investigation which ultimately led to Mr. Gallardo pleading guilty in June 2008 to
a charge of unlawful sexual relations and two charges of trafficking contraband.
Id. at 23, 12637.

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In May 2011, Ms. Keith filed a civil rights complaint alleging that prison
employees violated her constitutional rights. Id. at 139. Specifically, she
alleged that Defendants created and allowed a policy or culture of sexual
misconduct at TCF which placed her at substantial risk of harm, failed to take
reasonable measures to abate the culture of sexual misconduct, and were
deliberately indifferent to this substantial risk of harm. Id. at 3435. She
incorporated as part of her complaint a 2010 Kansas Legislative Post Audit
Report (Audit Report) that contained multiple findings regarding the situation
at TCF during and subsequent to her incarceration. Id. at 2331. Among other
things, Ms. Keith alleged facts indicating previous incidents of both sexual
misconduct and undue familiarity, inconsistent disciplinary responses to such
incidents, structural policy problems at TCF, and a lack of appropriate training
programs. Id. at 1331. Defendants filed a motion to dismiss, arguing in part
that they were entitled to qualified immunity. Id. at 5159. The district court
granted qualified immunity to all remaining Defendants except Mr. Koerner and
Mr. Gallardo and entered a default judgment against Mr. Gallardo. Keith, 2012
WL 1059858, at *7; App. 274.

Discussion
The denial of qualified immunity is an appealable final order under 28
U.S.C. 1291 if it turns on legal issues. Brown v. Montoya, 662 F.3d 1152, 1162
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(10th Cir. 2011). Determining whether a complaint sufficiently alleges a clearly

established violation of law is an issue of law and, therefore, an appealable final
decision over which we have jurisdiction. Ashcroft v. Iqbal, 556 U.S. 662,
67475 (2009). We review this decision de novo, applying the same standards as
the district court. Brown, 662 F.3d at 1162.
In resolving a motion to dismiss based on qualified immunity, the court
considers (1) whether the facts that a plaintiff has alleged make out a violation
of a constitutional right, and (2) whether the right at issue was clearly
established at the time of defendants alleged misconduct. Id. at 1164 (quotation
omitted); see also Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009) (describing
the two-part test to analyze a qualified immunity defense and holding that courts
can undertake it in either order).
As an initial matter, it is clearly established that a prison officials
deliberate indifference to sexual abuse by prison employees violates the Eighth
Amendment. See Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008); see also
Ortiz v. Jordan, 131 S. Ct. 884, 89293 (2011). Such a violation occurs where
the official knows of and disregards an excessive risk to inmate health or
safety, and there is an affirmative link between the constitutional deprivation and
the supervisors actions. Tafoya, 516 F.3d at 916 (quotation omitted); see also
Dodds v. Richardson, 614 F.3d 1185, 1198 n.6, 1204 (10th Cir. 2010). This
affirmative link has had three related, indistinct prongs in our case law: (1)
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personal involvement, (2) sufficient causal connection, and (3) culpable state of
mind. Dodds, 614 F.3d at 1195, 1199. We have held that a plaintiff may
establish the first prong with evidence that the defendant promulgated, created,
implemented or possessed responsibility for the continued operation of a policy
that caused the constitutional harm. Id. at 1199. The question here, then, is
whether Ms. Keith has alleged facts sufficient to support such a deliberate
indifference violation by Mr. Koerner.
To state a claim, a plaintiff must only allege enough factual matter in her
complaint to make her claim to relief . . . plausible on its face and provide fair
notice to a defendant. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
The district court found that Ms. Keith did so. Keith, 2012 WL 1059858, at *7.
In particular, it noted that she alleged facts that could tend to establish that Mr.
Koerner was responsible for managing TCF and knew about multiple instances
of sexual misconduct at TCF over a period of years, inconsistently disciplined
corrections officers who engaged in prohibited sexual conduct with inmates and
thus purportedly tolerated at least an informal policy which permitted sexual
contact between prison staff and inmates. Id.
On appeal, Mr. Koerner argues that Ms. Keith relies heavily on the Audit
Report, created years after the events of which she complains and including
events and statistics that post-date those events. Aplt. Br. 15. He suggests that
applying a standard of objective reasonableness, the mere number of incidents is
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insufficient to demonstrate an unreasonable response to a substantial risk, id. at

16, a point with which we agree. He further argues that the complaint omits the
response of the Secretary of Corrections, the inconsistent discipline in the report
deals with claims of undue familiarity, not sexual misconduct, and is not specific
as to the time period. Id. at 1718. Moreover, the incidents relied upon were
reported, investigated, and acted upon, demonstrating a reasonable response, and
certainly not one that suggests deliberate indifference. Id. at 1819.
Mr. Koerner characterizes Ms. Keiths argument as: because Mr. Koerner
had the responsibility for managing the facility and imposing discipline, and did
in fact discipline employees for undue familiarity and sexual misconduct, he must
have been aware of Mr. Gallardos criminal intent and did nothing to prevent it.
Aplt. Reply Br. 45. Of course, that alone would be insufficient to withstand a
motion to dismiss. But there is more.
We have reviewed the complaint and conclude that on a motion to
dismiss, Ms. Keith has provided notice and nudged her claims beyond the
conceivable to the plausible given that we must accept well-pleaded allegations as
true. First, Ms. Keiths complaint refers to facts, primarily from the Audit
Report, that could support a conclusion that Mr. Koerner was aware of multiple
incidents of unlawful sexual conduct at TCF. Aplee. Br. 89. For example, Ms.
Keith points to reports of at least 54 incidents of sexual misconduct and 33
incidents of undue familiarity between 2005 and 2009 and to a 2005 lawsuit over
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strip searches at TCF, suggesting that Mr. Koerner may have had knowledge of
these accounts. App. 87, 14. 1 Second, Ms. Keith alleges facts indicating that
discipline in response to complaints of sexual misconduct and undue familiarity at
TCF was inconsistent. Aplee. Br. 911. In particular, she points to the Audit
Report which describes multiple failures to properly investigate allegations and to
terminate employees when allegations were substantiated. App. 1317, 2628.
Third, Ms. Keith alleges facts that tend to show the existence of structural policy
problems that contributed to the unlawful sexual conduct here. Aplee. Br. 1112.
Specifically, she again cites to the Audit Report which determined that policy
decisionsparticularly decisions not to address known problems with the
vocational training program and the insufficient use of cameras to monitor
inmates and staffmade TCF ripe for staff misconduct. App. 19, 2324.
Fourth, Ms. Keith alleges that the lack of training programs tailored to the allfemale population of TCF contributed to the misconduct here. Aplee. Br. 1314;
App. 29. These allegations go beyond formulaic labels and conclusions and meet
our intermediate pleading standard. See Twombly, 550 U.S. at 555; Khalik v.

We note that many of the objections of Mr. Koerner are better suited to a
summary judgment motion where the substance of allegations must be admissible.
For example, the repeated claim that Mr. Koerner had knowledge of all these
incidents based upon information and belief would be insufficient to comply to
the requirement that statements be made based upon personal knowledge. Fed. R.
Civ. P. 56(c)(4); Tavery v. United States, 32 F.3d 1423, 1427 n.4 (10th Cir.
1994).
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United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).
Mr. Koerners arguments to the contrary do not carry the day. He argues
that although he may have had knowledge of other incidents of sexual
misconduct, he had no indication of potential harm to Ms. Keith specifically.
Aplt. Br. 18. But an officials knowledge of the risk need not be knowledge of a
substantial risk to a particular inmate, or knowledge of the particular manner in
which injury might occur. Tafoya, 516 F.3d at 916.
He further argues that due to inconsistent facts, the evidence will ultimately
show the reasonableness of his response. Aplt. Br. 1719. As noted, he
maintains that the disciplinary inconsistencies primarily regarded claims of undue
familiarity rather than sexual misconduct. Aplt. Br. 18. He also challenges Ms.
Keiths selective reading of the Audit Report which came out three years after the
events in question. Aplt. Br. 1617. But these disputes involve issues of
admissibility and of what inferences to draw from the facts. In sum, these are
matters for later in these proceedings. Smith v. United States, 561 F.3d 1090,
1104 (10th Cir. 2009).
The cases Mr. Koerner relies upon for a contrary result are not persuasive
in these circumstances. For example, in Hovater v. Robinson, a former female
inmate sued the county sheriff under 1983 after being assaulted by a detention
officer. 1 F.3d 1063 (10th Cir. 1993). This court held that there was no basis for
showing a substantial risk of harm to an inmate based solely on the premise that
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every female inmate faces a risk of harm from every male prison guard. Id. at
1068. Ms. Keiths complaint, however, is based on much more than the fact she
was a female inmate. Likewise, in Barney v. Pulsipher, we held that the plaintiff
presented no evidence of the actual knowledge required for 1983 liability for
deliberate indifference. 143 F.3d 1299, 1310 (10th Cir. 1998). Here, however,
Ms. Keith has alleged facts that, if established, might lead to a determination of
actual knowledge. And, unlike both Hovater and Barney, we are not at the
summary judgment stage. At this point, Ms. Keith has alleged facts sufficient to
state a plausible claim to relief and survive a motion to dismiss. See Gonzales v.
Martinez, 403 F.3d 1179, 118687 (10th Cir. 2005) (holding pleadings were
sufficient to permit a claim against a sheriff for deliberate indifference when a
sexual assault occurred because he ignored similar complaints in the past).
Two final matters require our attention. First, Mr. Koerner also argued
before the district court that he was entitled to dismissal because Ms. Keiths
claims should be barred by a two-year statute of limitations. The district court,
however, found that Ms. Keith sufficiently alleged a factual basis for tolling the
statute. Keith, 2012 WL 1059858, at *5; see also App. 45. Mr. Koerner
requests that this Court take up the statute of limitations as a pendent issue only
if this Court reverses the district courts denial of qualified immunity. Aplt. Br.
3; see also id. at 5. It is unclear why we would need to reach the statute of
limitations issue if we were to reverse and grant Mr. Koerner qualified immunity.
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Nevertheless, because we affirm the denial of qualified immunity, we do not

reach this issue. Moreover, because the district courts ruling on the statute of
limitations is neither inextricably intertwined with the appealable decision nor
necessary to ensure meaningful review of the appealable one, pendent appellate
jurisdiction is unavailable. Tarrant Regl Water Dist. v. Sevenoaks, 545 F.3d
906, 915 (10th Cir. 2008) (quotations omitted).
Finally, Ms. Keith attempts to supplement her brief. Fed. R. App. P. 28(j).
The material submittedcorrespondence from the federal governmentis not
proper new authority but rather additional evidence not submitted to the district
court. Therefore, we do not consider it. See Utah v. U.S. Dept of Interior, 535
F.3d 1184, 1195 n.7 (10th Cir. 2008).
AFFIRMED. Mr. Koerners motion to strike is GRANTED.

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